IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GRACE LAWRENCE 

Plaintiff, 

v. 

TRANS UNION LLC 

CITY OF PHILADELPHIA 

Defendant. 

C.A. NO: 02-CV-4440 

 

TRANS UNION LLC’S MEMORANDUM OF LAW IN 

REPLY TO PLAINTIFF’S OPPOSITION TO 

MOTION FOR SUMMARY JUDGMENT

 Trans Union LLC (“Trans Union”), by and through its undersigned attorneys, states as 

follows in reply to Plaintiff’s opposition to Trans Union’s motion for summary judgment: 

APPLICATION OF A NEBULOUS SIX YEAR STATE LAW LIMITATIONS PERIOD 

TO A LONG AGO EXPIRED FCRA CLAIM UNFAIRLY PREJUDICES TRANS UNION 

 Plaintiff claims she was denied credit and that Trans Union later failed to duly 

reinvestigate her disputes in 1997. The undisputed record demonstrates that there were no 

communications between Plaintiff and Trans Union between January 1998 and January 2001, 

three years. Any potential FCRA claim based upon her contacts with Trans Union, or Trans 

Union’s reporting of information in 1997, expired no later than January 2000. Trans Union has 

absolutely no records from the prior communications and the bank records were long ago 

destroyed. 

 Plaintiff seeks to circumvent not only the FCRA statute of limitations bar, but her own 

inactivity for over three years, by asking the court to apply a questionable six (6) year 

Pennsylvania statute of limitations to a never before recognized claim under the Pennsylvania 

Unfair Trade Practices and Consumer Protection Law, 73 P.S. '201-1 et seq. (the “PA CPL”). 

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Plaintiff’s contention is that her ancient FCRA violation should be given special dispensation 

and be revivified under the generic “catch-all” of the CPL, because the statute of limitations for 

these claims ought to be the “catch-all” 6 years. There is no statutory or case law which 

supports Plaintiff’s contention that a long ago expired FCRA claim can be the basis of a CPL 

claim. Indeed, U.S. Supreme Court authority demands a contrary result. 

 In Andrews v. TRW, Inc., 122 S.Ct. 441, 534 U.S. 19, 151 L.Ed.2d 339 (2001), the 

Supreme Court expressly rejected the notion that the limitation period for FCRA claims ought to 

be tolled pending “discovery” cogently stating: 

The FCRA does not govern an area of the law that cries out for 

application of a discovery rule, nor is the statute “silent on the 

issue” of when the statute of limitations begins to run. [quoted 

language of §1681p omitted] We conclude that the text and 

structure of §1681p evince Congress' intent to preclude judicial 

implication of a discovery rule. 122 S.Ct. at 447 

 Plaintiff’s proposal that a six year statute of limitations ought to apply to a consumer 

reporting agency seeks to undo both the Congressional limitations in place since 1969, but also 

the Supreme Court’s reinforcement of that limitation in Andrews. 

 In this connection, Trans Union submits that the issue is not only one of preemption, but 

of overreaching to establish a PA CPL cause of action out of and in order to rescue a time-barred 

FCRA claim. First, plaintiff was not a purchaser of anything from Trans Union and Trans 

Union’s “relationship” with plaintiff arises only out of the duties created by the FCRA. Contrary 

to the instant circumstances, every case cited by plaintiff, and virtually all PA CPL cases, are 

inapposite because each admittedly arises from a purchase or rental of something or the 

collection of a debt arising out of a purchase. For example, Gabriel v. O’Hara, 368 Pa.Super. 

383, 534 A. A.2d 488 (1987) (purchasers of real estate, insurance); Commonwealth of 

Pennsylvania by Creamer v. Monumental Properties, Inc., 329 A.2d 812, 818-819 (PA Com. 

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1974) (rental of real property); McClelland v. Hyundai Motor Company America, 851 F.Supp. 

680 (E.D.Pa. 1994) (purchase of automobile); Flores v. Shapiro & Kreisman, 246 F.Supp.2d 427, 

434 (E.D.Pa. 2002) (PA CPL extended to loans financing the purchases of goods or services for 

personal use as well as the collection of such debts, citing Smith v. Commercial Banking Corp., 

866 F.2d 576, 583 (3rd Cir. 1992)). 

 However, no state or federal court in Pennsylvania has extended the PA CPL to nonpurchasers who suffered a loss as a result of an unfair or deceptive practice. In fact, the court of 

appeals has explained the Pennsylvania legislature did not 

The statute unambiguously permits only persons who have 

purchased or leased goods or services to sue. The private cause of 

action is also limited to unfair or deceptive methods, acts, or 

practices in the conduct of any "trade or commerce" . . . . Had the 

Pennsylvania legislature wanted to create a cause of action for 

those not involved in a sale or lease, it would have done so. The 

Pennsylvania Supreme Court has never addressed the issue before 

us. Its only reported decision on the CPL supports the conclusion 

that a private plaintiff must at least have purchased or leased goods 

or services. Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3rd

Cir. 1992). 

See also, Smith, supra, 866 F.2d at 583. 

 Finally, in Balderston v. Medtronic Sofamor Danek, Inc., 285 F.3d 238, 242 (3rd Cir. 

2002), a doctor sought to file a PA CPL action to take advantage of a potential six (6) year 

statute of limitations claiming he was the purchaser of defective medical screws. The court of 

appeals expressly noted that he declined to file suit until “several years beyond the two year 

statute of limitations” for a common law fraud claim. 285 F.3d at 240. There, the court of 

appeals rejected the doctor’s PA CPL action because he was not the “purchaser” of a defective 

medical screw: “[The doctor] is a not a ‘purchaser’ under the CPL. Therefore, he has no 

standing to sue.” Id. at 242. 

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 Plaintiff’s instant attempt to resurrect and revive her long ago time-barred FCRA claims 

as PA CPL claims ought to be likewise denied. 

 Plaintiff’s contrary suggestion is based solely upon an intermediate appellate case from 

California, respecting California’s “Unfair Business Practices Act.” Cisneros v. U.D. Registry, 

46 Cal.Rptr.2d 233 (Cal. App. 1995). This action relates to a California statute which is worded 

entirely differently than the Pennsylvania statute in question instantly. The California statute 

relates to unfair competition, not solely consumer transactions, like the PA CPL. Moreover, the 

case has never been cited anywhere in a published (or available unpublished) decision for the 

proposition that a violation of the FCRA ought to be the basis of a state law unfair trade practices 

act. 

 Accordingly, Trans Union is entitled to summary judgment on all claims which occurred 

prior to July 3, 2000. 

EVEN IF NOT TIME BARRED, THE 1997 DENIAL OCCURRED BEFORE NOTICE 

TO TRANS UNION: 

 Plaintiff’s claim that she was denied a Sallie Mae and or Key Bank student loan in the 

summer of 1997 is barred for many reasons. First, it is time barred under the FCRA. (1681p). 

Next, Plaintiff concedes the denial(s) occurred before Plaintiff disputed the judgment to Trans 

Union. (See Plaintiff’s Opposition, p. 6) The denial led to her obtaining a copy of her report 

which is how she first saw the judgment. (Ibid.) Thus, Trans Union was not on notice that the 

account did not belong to Plaintiff. As the Court of Appeals held in Cushman v. Trans Union 

Corp., 115 F.3d 220 (3rd Cir. 1997): 

[A] credit reporting agency may initially rely on public court 

documents, because to require otherwise would be burdensome 

and inefficient. 115 F.3d at 224 quoting Henson v. CSC Credit 

Servs., 29 F.3d 280, 286-7 (7th Cir. 1994). 

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 As the Court held in Podell v. Citicorp Diners Club, 112 F.3d 98 (2nd Cir. 1997): 

Trans Union was entitled, as a matter of law, to report the 

information from Podell's creditors regarding his indebtedness at 

least until it heard from Podell directly. 112 F.3d at 104 

(quotations, brackets omitted). 

 As the Declaration of Nancy Cerbus, Vice President of Data Services for Superior 

Information Services, LLC (“Superior”) demonstrates, the information was initially furnished to 

Superior, and then to Trans Union, by the City of Philadelphia on an automated tape. 

Declaration of Nancy Cerbus ¶5, attached hereto as Exhibit “A” (herein “Cerbus Decl. ¶_”). 

 Because there was no reason to doubt the accuracy of information furnished by the City 

of Philadelphia to Superior (and then to Trans Union) prior to Plaintiff’s dispute, Trans Union is 

entitled to summary judgment on all claims which may have arisen before the first dispute in 

August 1997, and in particular the July 1997 Sallie Mae claim. 

 With respect to the alleged, but unidentified mortgage and car loan applications, Plaintiff 

failed, in her prolix fifty two (52) page opposition, to articulate any opposition to Trans Union’s 

motion and failed to identify any cognizable witnesses in her pretrial from any of the still 

unidentified lenders (or Sallie Mae). Plaintiff references, but fails to present any evidence or 

case law to support such claims. Plaintiff merely contends: “she did not receive or keep adverse 

action letters...,” and “lost potential credit opportunities.” (Opposition, p. 21) The unidentified 

claims should be dismissed as abandoned or because they lack merit for the reasons more fully 

set forth in Trans Union’s opening Brief. (See discussion of Philbin, Trans Union’s Opening 

Brief, pp. 14-15). The “potential” claims should be dismissed as grossly speculative. That sort 

of conclusory and speculative assertion does not satisfy Plaintiff’s burden on summary judgment 

because it is her burden to demonstrate the elements of her claim. See Philbin supra and 

discussion of Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 475 (2nd Cir. 1995); Obabueki 

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v. Choicepoint, Inc., 236 F.Supp.2d 278 (S.D. NY 2002) aff’d 319 F.3d 87 (2nd Cir. 2003), Trans 

Union’s opening brief, pp.16-17. This is not just in the context of summary judgment. The 

pretrial has been filed and no competent witnesses have been identified. 

 Finally, with respect to the Chase application, Plaintiff has not and cannot explain how 

she was “harmed” when she withdrew (or even was denied) a credit card which was entirely 

redundant.1 As more fully explained in Trans Union’s Opening Brief, the card was redundant 

because she already had a $10,500.00 Chase credit card. (See Trans Union’s opening brief. 

p.4) As such no harm, actual, emotional or financial can be causally connected to that 

application. 

 Significantly, because no FCRA claim can be established based upon such transactions, 

the events cannot be deemed violations to sustain CPL claims. Indeed, the only alleged CPL 

violation is predicated upon alleged violations of the FCRA. To allow these unsubstantiated 

claims to triple the statute of limitations would unfairly prejudice Trans Union. 

SUPERIOR’S REINVESTIGATION 

 Plaintiff makes the outlandish and wholly unsupported claim that Trans Union’s reliance 

upon a public record vendor to reinvestigate disputed information is, in itself, a violation of the 

FCRA. Plaintiff’s central claim, that Trans Union “never [] contacted the Philadelphia 

Municipal Court...” (Plaintiff’s Opposition, p.2) is wrong. On the contrary, Trans Union’s 

public record vendor, Superior, actually reinvestigated the disputed information by physically 

 

1

 Plaintiff disclosed in discovery only the “denial” letter from Chase. Only after Plaintiff was deposed, and 

Chase was subpoenaed, did it become known to Trans Union that, in fact, Plaintiff withdrew the application before 

she received the “denial” letter. Interestingly, Plaintiff did not submit an affidavit at summary judgment, or 

amendment to deposition testimony to explain that Plaintiff was, in fact, aware that she was “denied” before she 

withdrew the application. The only “evidence” Plaintiff cites is deposition testimony from a Chase representative in 

which Ms. Stout “would assume that she knew, that’s why she wanted it withdrawn.” See Plaintiff’s Opposition, 

p.20 and Exhibit “L” thereto, p.41. This ‘assumption’ is not based on any business records of Chase, and there is no 

evidence whatsoever that Plaintiff knew she was “denied” when she withdrew the application. Accordingly, there is 

absolutely no competent evidence that Plaintiff was denied credit, and only competent evidence she withdrew the 

application before receipt of the “denial” letter. 

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going to the Courthouse and looking at the records. Cerbus Decl. ¶¶6-7; Declaration of Nicholas 

Palmer ¶¶6-8, attached hereto as Exhibit “B” (herein “Palmer Decl. ¶_”). 

 No FCRA case has ever held that a consumer reporting agency cannot use a contractor to 

gather and reinvestigate public record data. In fact, the use of such vendors is an industry-wide 

practice. The only evidence of record, the deposition of Stockdale, the Declarations of Cerbus 

and Palmer, demonstrates that Trans Union follows extensive procedures in selecting, training, 

and auditing its vendors.2

 

 Unlike the plaintiff in Obabueki, supra, Plaintiff utterly failed to obtain any evidence 

whatsoever that Trans Union’s procedures in hiring, training, or auditing Superior were 

inadequate. Absent evidence of a failure of Trans Union’s procedures, Plaintiff presents 

unsupported attorney argument that Trans Union “never contacted the Municipal Court... and 

does not know whether they were ever contacted by anyone in response to Ms. Lawrence’s 

disputes.” Plaintiff’s brief, p.4. However, the only evidence of record is that Trans Union did 

not select the low-cost vendor; Trans Union does not assume accuracy, but subjects the vendor to 

audits and inspections; and the contractual duty to report accurate information is express and of 

utmost importance. See Stockdale Dep., Cerbus Decl., Palmer Decl. 

 Contrary to Plaintiff’s unfounded assertions, Trans Union’s public records vendor, 

Superior, reinvestigated the disputed judgment by going to the actual courthouse and reviewing 

the court files and records, not the docket. (See Plaintiff’s Opposition, p. 17) Indeed, as set 

 

2

 See Obabueki v. International Bus. Mach. Corp., 145 F.Supp.2d 371, 397-401 (S.D. NY 2001), where the plaintiff 

demonstrated, through the deposition of Choicepoint, the defendant consumer reporting agency, that at least eight 

aspects of Choicepoint=s procedures created a material issue of fact as to reasonableness, including that Choicepoint 

selects the low-cost supplier, Choicepoint Aassumes@ the supplier gives accurate information, Choicepoint only 

verifies the identity of the reported information, not its accuracy, and that third party suppliers= duty to report 

accurate information is merely Aimplied.@ 145 F.Supp.2d at 397-398 (emphasis supplied). Based upon the ample 

evidence which that plaintiff presented, the Court denied Choicepoint=s motion for summary judgment and allowed 

the question of the reasonableness of its procedures to be submitted to a jury. 145 F.Supp.2d at 399-400. 

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forth in the Palmer Declaration, ¶3, the individual who did the reinvestigation of Plaintiff’s 2001 

dispute has twenty-three (23) years experience working as a clerk in the Philadelphia 

Prothonotary’s Office. If, as a result of an unfortunate human error an erroneous judgment was 

verified, it was done despite Trans Union’s reasonable care, not due to lack of procedures. 

PUNITIVE DAMAGES 

 Plaintiff opposes Trans Union’s motion for summary judgment on punitive damages on 

three delineated grounds: First, Trans Union allegedly does not send “all relevant information” 

regarding the consumer’s dispute. (Opposition, p. 40) Second, Trans Union allegedly did not 

verify with the Municipal Court (Ibid.) Third, Trans Union allegedly reported a judgment “it 

admittedly knows nothing about.” (Id. at 42) 

 With respect to the first contention, that Trans Union allegedly failed to send “all relevant 

information,” there is no case or statutory authority which suggests Trans Union needed to send 

documentation as opposed to a dispute which required Superior to go to the court and verify all 

available information respecting the judgment. (See Stockdale dep.) Further, as more fully 

described above, Trans Union does not “parrot” the original tape furnished by the City of 

Philadelphia with the judgment. Instead, Trans Union required Superior to physically go to the 

Municipal Court, pull the Court file, and review the pleadings and records to verify the accuracy 

of the judgment. (Cerbus Decl. ¶¶6-7; Palmer Decl. ¶¶6-8.) The procedures require a manual 

review consistent with the FCRA and relevant caselaw. If, in fact, a “human error” by an 

extremely experienced verifier occurred in the process of that review, there is absolutely no basis 

to find a conscious or wilful disregard of Plaintiff’s FCRA rights. 

 Plaintiff last contention is contrary to the testimony of Stockdale, and the Cerbus and 

Palmer Declarations, which demonstrate that Superior has an excellent track record and is 

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routinely audited and even subject to challenges from other vendors. (See Stockdale Dep.) The 

fact that Ms. Little was not aware of the accuracy of the judgment in May 2003, almost a year 

after it was permanently deleted (See Plaintiff’s brief, p.13) is not germane to Plaintiff’s claims 

instantly. 

 Exactly as the Court required in Henson, supra, Trans Union did not rely upon judgment 

dockets to reinvestigate disputed public record information. Trans Union employs a highly 

qualified vendor, Superior, which in turn employs a Court Administrative Officer at the 

Philadelphia Prothonotary’s Office to physically go to the Municipal Court and verify the actual 

court documents. Trans Union did not rely on the initial source of the information (a tape 

provided by the City of Philadelphia), but instead relied upon a review of the accuracy of the 

original source documents. Trans Union was entirely without notice that this vendor 

inaccurately verified the information. Accordingly, Trans Union is entitled to summary 

judgment on Plaintiff’s punitive damages claims. 

 Finally, Trans Union submits that Sheffer v. Trans Union, recently decided by Judge 

Shiller is not germane instantly and is wrongly decided with respect to Trans Union. First, the 

Court’s reliance upon Boris v. Choicepoint Servs., 249 F.Supp.2d 851, 862 (W.D.Ky. 2003) was 

erroneous. In Boris, Plaintiff presented evidence of the following elements (#): That 

defendant’s report (1) contained erroneous “fire” claims, which should have been “water” 

claims; Plaintiff disputed that error for times. 249 F.Supp.2d at 862. (2) Defendant finally 

changed the fire claims to water claims, (3) but added back the fire claims. Ibid. (4) Defendant 

reinserted the erroneous and previously disputed fire claims “despite knowing that CNA [the 

information furnisher] may have sent [defendant] bad information.” Ibid. (5) After Plaintiff 

filed her action, defendant left the erroneous claims on her file for eleven months and (6) 

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reported the claims to insurers causing Plaintiff harm and distress. Ibid. (7) The sole reason the 

erroneous claims finally came off Plaintiff’s report was that the information “was so old it 

expired.” Ibid. Finally, (8) defendant “displayed a generally uncaring attitude at trial” and 

“throughout the trial, [defendant] made several ill-advised efforts at trial to blame or criticize 

Plaintiff for her own problems.” Id. at 862 and 863. 

 Except for the existence of disputes, none of the elements proved in Boris were alleged

against Trans Union in Sheffer; there was no deletion and reinsertion, there was no harm after 

the dispute. Therefore, Sheffer was wrongly decided and contrary to court of appeals authority. 

 Instantly, the judgment was deleted due to late responses, not inaccuracy; Plaintiff was 

duly notified when the judgment was verified and reinstated. In Philbin v. Trans Union Corp., 

101 F.3d 957, 970 (3rd Cir. 1996), the seminal punitive damages case in this and many other 

circuits, the court of appeals has held: 

Philbin claims that TUC is liable for a willful violation because he 

notified it of the error several times and TUC failed to correct it. 

However, after the first notification, in 1990, TUC did remove the 

erroneous information for a period of time. * * * There appears to 

be one instance -in November of 1992 -- when he notified TUC 

that, despite the earlier correction, the error re-appeared, and TUC 

failed to correct it. This, however, falls short of evidence of a 

willful violation. 

Its actions do not rise to the level of a "willful misrepresentation or 

concealment" that justifies finding a willful violation. Pinner, 805 

F.2d at 1263; cf. Millstone, 528 F.2d at 834.

 As such, the reinsertion of previously disputed and deleted information is not sufficient 

to demonstrate “wilful misrepresentation or concealment” necessary to establish an FCRA 

punitive damages claim in this Circuit. (See also, Cousin v. Trans Union Corp., 246 F.3d 359 

(5th Cir. 2001) cert den.122 S.Ct. 346, 151 L.Ed.2d 261) To the extent that Boris (or Sheffer) 

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can be viewed to be inconsistent in its ruling on FCRA punitive damages, the case is contrary to 

binding Court of Appeals authority (Philbin) and should be disregarded. 

 However, Trans Union respectfully submits that Boris is not inconsistent, but simply 

decided in the context of completely different facts and in the face of defendant’s egregious 

conduct which started before the lawsuit and continued throughout the trial. 

 Not surprisingly, Plaintiff did not reference Boris in her brief in opposition to Trans 

Union’s Motion for summary judgment on punitive damages; the case is simply not germane. 

(See Plaintiffs Opposition, pp. 38-43) (Plaintiff does cite to Boris for an unrelated issue.) 

CONCLUSION 

 For all the above reasons and authorities, Defendant Trans Union LLC respectfully 

moves this Court to enter summary judgment in its favor, and to dismiss Plaintiff=s claims with 

prejudice. 

Respectfully Submitted, 

 

______________________________ 

 BRUCE S. LUCKMAN (38636) 

TIMOTHY P. CREECH (81728) 

SATZBERG, TRICHON, 

 KOGAN & WERTHEIMER, P.C. 

1818 Market St., 30th Floor 

Philadelphia, PA 19103 

(215) 575-7600; Fax: (215) 575-7688 

bluckman@mstkw.com

tcreech@mstkw.com

Attorneys for Defendant, 

Trans Union LLC 

DATED: August 8, 2003 

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